Sunday, 16 December 2007

DALLAS (Reuters) - New Jersey's abolition vote this week highlights scrutiny of the death penalty in America, and analysts say it could be a small step in the direction of an eventual nationwide ban.

But with capital punishment still on the books in 36 states, a conservative majority on the Supreme Court, and broad political support for putting the worst offenders to death, the road to abolition will be long.

"Ultimate abolition is indeed a long way off," said Stuart Banner, a professor at the UCLA School of Law and author of "The Death Penalty: An American History."

"I'd be very surprised if the (Supreme) Court casts any doubt any time soon on the constitutionality of capital punishment in general."

New Jersey on Thursday became the first state legislature since the 1960s to abolish the death penalty. Coming on top of an unofficial moratorium on executions, some had questioned whether the move by New Jersey was a step toward national abolition.

The unofficial moratorium has been in place since just after the Supreme Court said on September 25 that it would decide an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering. One convicted killer was executed in Texas hours later but none have been since then.

Lethal injection has come under increased scrutiny after executions in Florida and California in which inmates took up to 30 minutes to die. All but one of the states with the death penalty and the federal government use lethal injection for executions.

The court's decision is not expected before the middle of next year but if it decides that the current cocktail is unconstitutional, states could seek alternative methods.

Still, capital punishment opponents have taken heart because of two trends: declining numbers of both executions carried out and death sentences being handed down.

The number of death sentences imposed in 2005 -- the last year for which there is complete data -- was 128, way down from 317 in 1996. And if the moratorium holds as expected until the end of this year, America will have executed 42 inmates in 2007, the lowest number since 1994, when 31 were put to death.

One of the main reasons for this newfound hesitancy is concern about wrongful convictions, many related to perceived racial bias against black defendants.

No U.S. court has found that anyone has been executed in the past three decades for a crime they did not commit, but DNA and other evidence has exonerated 125 inmates since 1973 who were awaiting execution on death row, according to the Washington-based Death Penalty Information Center.

There is broad political support for the death penalty, especially for the most heinous crimes. This spans the political spectrum, from liberals who do not want to be seen as "soft" on crime to conservative Christians who see Biblical sanction for taking an "eye for an eye."

All the Republican presidential candidates with the exception of Texan maverick Ron Paul support the death penalty. On the Democratic side, the three front-runners, Senators Hillary Clinton, Barack Obama and John Edwards all back it.

And political support is strongest in the South, which is expected to keep executing people until the Supreme Court tells it otherwise.

"The South is a region with a traditional political culture which sees the death penalty as a means of maintaining social order," said Cal Jillson, a political scientist at Southern Methodist University in Dallas.

According to the Death Penalty Information Center, the South has carried out 901 of the 1,099 executions, since the U.S. Supreme Court lifted a ban on the practice in 1976.

Texas had led the way by far with 405, while the Northeast has only carried out four, highlighting the regional divide.

New Jersey had not executed any convicted criminals since 1963, making its vote mostly symbolic.

However, some commentators see the possibility of a domino effect from New Jersey's move, albeit over a period of years.

"States have often looked to their neighbors in deciding whether to modify or abolish capital punishment. If several states were to abolish the death penalty over the next decade, the constitutional basis for attacking the death penalty would be substantially strengthened," said Jordan Steiker, a professor at the University of Texas at Austin School of Law.

"If death sentencing rates continue to decline, execution rates remain low, and several states abandon the penalty as a matter of law (and not just practice), judicial abolition would become a very real prospect," he said.